Topic: Education and Child Policy

Montana Can’t Use a 150-Year-Old Anti-Catholic Law to Discriminate Against Religious Schools

Blaine Amendments—adopted by many states starting in the late 1800s as an anti-Catholic measure—prevent states from using public funding for religious education. Thirty-seven states currently have the amendments, and some courts have interpreted them excluding religious options from state school-choice programs—that is, preventing access to otherwise publicly available benefits purely on the basis of religion. In other words, Blaine Amendments let some states practice religious discrimination.

Montana created a program where people who donated to private-school funding organizations received tax credits. The program both encouraged school choice and allowed people to spend their own money how they saw fit. However, the Montana Department of Revenue used the state’s Blaine Amendment to exclude those donors whose money found its way to religious private schools, and, at the same time, it allowed non-religious private-school donors to benefit. During the ensuing legal challenge, the Montana Supreme Court not only ruled against the religious families that challenged the discrimination, it struck down the entire program, meaning both religious and non-religious donors wouldn’t receive tax credits.

Our friends at the Institute for Justice have petitioned the United States Supreme Court to hear the case, and Cato has filed a brief in support. Both Cato’s Center for Educational Freedom and the Robert A. Levy Center for Constitutional Studies have an interest in this case, so we teamed up to cover both the constitutional and policy angles of the issue. We argue that the Court should correct the Montana Supreme Court’s flawed reading of the First Amendment’s religion clauses and reaffirm that states cannot erode the Free Exercise Clause in the guise of strengthening the Establishment Clause. The Religion Clauses work together to help protect the freedom of conscience, not to prohibit school-choice programs that help both religious and non-religious schools.

The First Amendment’s Establishment and Free Exercise Clauses prohibit laws “respecting an establishment of religion, or prohibiting the free exercise thereof.” As Cato explained in a recent brief, the two clauses work together to protect individual freedom of conscience. However, states like Montana often use the Establishment Clause to justify the existence of Blaine Amendments. They argue that Blaine Amendments are necessary to prevent “an establishment of religion” by strengthening the wall of separation between church and state. But in the modern world, where government is so involved in giving public benefits like tax credits, it is impossible to maintain a complete wall of separation without discriminating against religion (as Blaine Amendments do), which is not what the Framers intended. Instead, the government must remain neutral toward religion and not disfavor religious people or organizations. In this sense, the Establishment Clause is a shield protecting the people from state religion, not a sword enabling government to discriminate against religious faith.

At the same time, school-choice programs help prevent the forced ideological conformity that is inevitable in public schools. Tax-credit programs like Montana’s allow parents to select schools that share their values, reducing the need to impose those values on others. In so doing, they improve our nation’s social and political cohesion and reduce conflict. Cato’s Public Schooling Battle Map tracks how public schools create conflict by forcing uniformity onto ideological diversity. Blaine Amendments merely fan the flames of the ideological conflicts that currently engulf public education.

Despite all these considerations, the Montana Supreme Court declined to properly consider the First Amendment implications of the state’s Blaine Amendment. Instead, it gave the Montana Department of Revenue a slap on the wrist for exceeding its procedural authority and destroyed the entire tax credit program rather than contend with the unconstitutional discrimination inherent in Montana’s Blaine Amendment. As school choice becomes more popular around the country, the question of religious discrimination and Blaine Amendments will become more salient. The Montana decision was just the latest in a series of federal and state courts decisions that are divided on the issue. That divide will continue without guidance from the Supreme Court. The Court should take this case to clarify that the Constitution requires religious neutrality, not discrimination.

Brown v. Board Did Not Start Private Schooling

A common refrain in opposition to school choice is that choice is rooted in racial segregation. Specifically, that people barely thought about choice until the Supreme Court’s 1954 Brown v. Board of Education decision required public schools to desegregate, and racists scrambled to create private alternatives to which they could take public funds. I have dealt with this before and won’t rehash the whole response (hint: Roman Catholics), but a new permutation popped up on Vox yesterday, with author Adia Harvey Wingfield asserting:

Prior to Brown v. Board of Education, most US students attended local public schools. Of course, these were also strictly racially segregated. It wasn’t until the Supreme Court struck down legal segregation that a demand for private (and eventually charter and religious parochial) schools really began to grow, frequently as a backlash to integrated public institutions.

Kudos to Prof. Wingfield for making clear that many public schools were “strictly racially segregated,” which often seems to be soft pedaled when linking choice to segregation. But her assertion that private schooling didn’t “really” begin to grow until after Brown is not borne out by the data. As the chart below shows, while the share of enrollment in private schools spiked in 1959, the growth in private schooling didn’t suddenly increase right before that. In 1889—the earliest year available— the private school share was 11 percent, dipping to 7 percent in 1919, then pretty steadily rising until the 1959 peak. (Note, the earlier years of the federal data are in ten-year increments. Also, data include pre-K enrollments.)

History is clear that private education has long been with us, and while it has certainly at times been used to avoid racial integration, it has also been employed for reasons having nothing to do with that. This remains true even in our relatively modern era in which “free” public schools have crowded out many private options.

The FAMILY Act Costs More than Expected

A new report suggests that the Democrats’ FAMILY Act paid leave proposal is substantially more costly than previously estimated. The difference is meaningful: using more realistic assumptions, the cost of national paid leave is 7-fold greater than previous estimates, and taxpayers would be picking up the tab.

The American Action Forum analysis uses data from Cato’s paid family leave poll to estimate the cost of the FAMILY Act. Previously, assumptions used to model the cost of the program relied on the use of national unpaid leave benefit take-up rates (FMLA), or lesser-known, less generous, state paid leave program take-up rates. Unfortunately, neither are good proxies for the likely use of a paid, nationally-known, and more generous FAMILY Act-like program.

The nationally representative Cato paid leave poll asked directly about respondent’s intended use of a FAMILY Act-like benefit. The take-up rate and benefit use duration for the FAMILY Act were substantially higher than previous estimates that relied on take-up rates for unpaid leave or lesser-known and less generous state programs.

Figure 1: Three Estimates of the Cost of the FAMILY Act 

 Estimates of FAMILY Act Cost

Using more realistic use assumptions, the FAMILY Act would cost 7-fold as much as previously estimated (Figure 1) and require a 2.85 percent payroll tax on workers. For an average worker, that means paid leave would cost $1,440 per year. This is substantially more expensive than previously claimed: elsewhere, advocates assert that the FAMILY Act would require a 0.2 percent payroll tax on workers, at a cost of $75-95 annually.  

Accurately forecasting the cost of paid leave is critical, because Americans are price-sensitive. For example, when costs aren’t mentioned, 74 percent of Americans say they support national paid leave policy. But if paid leave costs workers $1,200 per year, a majority of Americans oppose paid leave. 

It seems likely the FAMILY Act will cost substantially more than advocates claim, either because estimates use erroneous assumptions or because the policy grows substantially over time, as paid leave policies have elsewhere in the world. Either way, taxpayers deserve accurate information about the cost of paid leave before policymakers ask them to sign on the dotted line. 

On Trump’s Higher Ed Executive Order

President Trump’s hotly anticipated executive order on college free speech—brought to a fever pitch with his comments at this year’s CPAC—is out. It’s actually kinda several orders in one, with free speech on the main stage, but college outcomes data, and a bunch of studies—including of “skin in the game”—on the sides. Here are some quick thoughts on all three parts.

Free speech

Conservatives, especially, have become disgusted with what they have seen as an increasingly aggressive, politically-correct culture on American campuses, and not without some justification. The order, as you could glean from the White House signing event, was almost certainly motivated by that. But as far as the words of the order go, it seems restricted to combatting college policies, not cultures. Free speech zones, administrators prohibiting certain speakers, etc. Crucially, it treats public and private institutions differently, understanding that public colleges are fully subject to the First Amendment, while private colleges are beholden to what they promise their customers. If they say they are going to allow the free exchange of ideas, they need to do that, but if they are forthright about their speech codes, no problem.

The danger lurks in the order’s generality. It directs multiple federal agencies to “take appropriate steps, in a manner consistent with applicable law, including the First Amendment, to ensure institutions that receive Federal research or education grants promote free inquiry.” Sounds good, but it doesn’t spell out what that means. Could it result in agencies saying free inquiry requires intellectual “balance” among invited school speakers, or something similarly intrusive? What if all agencies have their own, differing definitions? And as Sen. Lamar Alexander (R-TN) suggested, isn’t speech protection more the bailiwick of the Department of Justice than Energy, or the National Science Foundation?

Data

The order calls for the Department of Education to create a new website and mobile app so borrowers can easily check data on their students loans, which is fine if you (wrongly) accept that the feds should be in the student loan business. Also, it requires that the College Scorecard, launched during the Obama Administration, add data on program-level, rather than just school-level, outcomes such as graduate earnings.

Data publication is one of the less dangerous things Washington does, but it still has pitfalls, especially the likelihood the data will be politically cherry-picked instead of used to inform.

Studies

A longstanding proposal, championed by many people who understand the root problems of higher education, has been for colleges to bear some cost for defaulted loans. As it stands now, most schools have little incentive to turn away federal bucks-bearing students, no matter how unlikely to complete their studies they may be. Schools get paid no matter what, meaning student aid is all upside for colleges. The “skin in the game” goal is to incentivize schools to better vet potential matriculators, or maybe do a better job educating.

Two problems. First, this blames institutions when the crux of the problem is elsewhere: Washington gives bundles of money to just about anyone who wants them, without seriously assessing their ability to handle the programs they plan to enter. It’s at the point of the initial loan where the vetting should occur, to the benefit of both the would-be borrower and the true lender: the American taxpayer. Second, politically favored schools such as community colleges would probably quickly be identified for exemption. Thankfully, as the heading of this section telegraphs, the order just calls for a study of ways to implement such a proposal.

The other areas for study are pretty innocuous, as far as federal education intervention goes. The Secretary of Education is to study and report on better ways to collect on defaulted loans, and to formulate ideas to increase college completion based on what’s worked in states and institutions.

Summary

All in all, the order’s not the worst thing we could have gotten, but there are ample causes for concern.

A Win on Student Speech in Rhode Island

The government can’t force people to promote messages they disagree with, even when – particularly when – the government actors are public university professors and the speaker is a student who needs to pass certain classes to get a degree.

William Felkner, a self-identified “conservative libertarian,” studied social work at Rhode Island College, a state school. His views unsurprisingly clashed with those of his professors, who consider the social work course – and the profession itself – to be “devoted to the value of social and economic justice.” In keeping with this philosophy, one of his professors assigned him to lobby the state legislature for a progressive bill.

Felkner refused to speak against his beliefs by lobbying in favor of progressive legislation. His term paper instead reflected his honest opinion of the bill. As a result, his professor gave him a failing grade and Felkner ultimately never completed the program.

That incident, in addition to a long string of events in which professors disparaged Felkner’s politics and tried to stifle his opinions, led him to sue the college. He argued, among several claims, that the school infringed on his right to free speech, compelled him to speak against his conscience, and placed unconstitutional conditions on his earning his degree.

Conservatives and libertarians are often pushed out of progressive academic circles by faculty or administrators. For private universities, such behavior is alarming and worth counteracting, but mostly comes down to academic freedom. Public institutions like Rhode Island College are government actors, however, and must afford students the rights guaranteed to them by the Constitution, especially the freedom of speech. The U.S. Supreme Court has long understood that the First Amendment prohibits the government from compelling an individual to express an opinion that violates his or her conscience.

Nevertheless, the lower state court was not convinced that the school compelled Felkner to speak and found that the school’s actions did not violate his constitutional rights. On appeal to the Rhode Island Supreme Court, Cato filed an amicus brief, arguing that students don’t shed their free speech rights at the schoolhouse door.

In a decision released on Monday, the state supreme court agreed, reversing the lower court’s grant of summary judgment for the school on several claims and allowing the case to go to trial. Citing the U.S. Supreme Court’s decision in Hazelwood School District v. Kuhlmeier (1988), the Rhode Island Supreme Court explained that schools and teachers have broad authority to exercise “editorial control” over student speech “so long as their actions are reasonably related to legitimate pedagogical concerns.” However, a teacher can’t limit student speech as a punishment for a student’s political views. The court held that Felkner raised legitimate issues of material fact – meaning that a jury will get to decide whether in fact the professors’ and administrators’ actions were appropriate (unless the college now decides to settle with Mr. Felkner, which is what I would advise if I were its lawyer).

Proponents of free speech should regard this as a win for students’ First Amendment rights on college campuses. The court’s decision here comes not a moment too soon, as schools increasingly attempt to silence students and regulate their speech. As a procedural matter, it also bodes well that state supreme courts still adhere to the “material facts in dispute” standard for summary judgment.

In sum, no person in a public university, whether a student or a teacher, should be forced to say something that they find objectionable, and the case of Felkner v. Rhode Island College stands in recognition of that important principle. 

Any Budget That Cuts Fed Ed Is Good, But…

The Trump Administration’s proposed U.S. Department of Education budget, released yesterday, is due some props. It would cut spending by about 10 percent from 2019, and kill some bad programs. But there’s also a downside: it would push federal tentacles further toward private schools, and deeper into charters. Which means the lesson still hasn’t been learned: The Constitution gives Washington no authority to govern in education, and that includes advancing ideas the Trump Administration—and I!—like.

Let’s first acknowledge that it takes some guts to cut education department funding, because the average person probably hears “cuts to education” and thinks “oh no, cutting education!” What they should hear is “cutting spending in the name of education, but that often has very dubious educational effects.”

You can look at National Assessment of Educational Progress scores since the early 1970s, as federal intervention ramped up, and observe essentially no improvement for 17-year-olds:

That’s the federal government’s own yardstick showing stagnation, despite real spending from all sources per public K-12 student, and total federal elementary and secondary outlays, more than doubling since 1970. (The massive leap in federal spending in 2009 is the Obama “stimulus.”)

 

You can also look at the 21st Century Community Learning Centers program, funded to the tune of $1.2 billion for 2019, to see a program for which federal studies find neutral to negative effects. Or you can look at federal student aid programs—including Pell Grants, loans, and loan forgiveness programs that favor Americans working in putatively “nonprofit” jobs—to see hugely counterproductive effects, including rampant tuition inflation, high debt, and the hollowing out of college degrees.

The administration will be bludgeoned with woeful rhetoric for these proposed cuts, but they are the right thing to do.

School choice is also good, but trying to expand it through Washington, as this budget calls for, is wrong, both constitutionally and if we desire maximum choice. As I wrote last week about the Administration’s proposal for a $5 billion scholarship tax credit, “what the feds fund, even indirectly, they inevitably want to control.”

President Trump’s Campus Speech Order

President Trump has waded into the ongoing campus free speech controversy—or should I say “cannonballed” in off the high dive. Though lacking in details for now, Trump promised conservative activists at CPAC in Washington, D.C. that he would soon issue an executive order “requiring colleges and universities to support free speech if they want federal research dollars.”

Though debate rages over the nature and extent of the problem—after all, higher education is a vast and complex domain—it must be said that Trump’s objective is highly defensible. Who except would-be censors and narrow-minded political activists thinks free speech is not vital to higher education and the country? And fair minded observers agree that free speech is at least embattled in many institutions, if not in worse shape at others. So who can argue against Trump’s promise?

Alas, my experience in free speech politics and higher education informs my concern that Trump’s end does not justify his means for at least two reasons. First, do we really need yet another executive order to deal with a problem that is already being addressed by many concerned citizens? We the People and our legislative representatives have kicked too many problems over to the executive/administrative branch of government to solve, weakening democratic consensus and self-government in the process. Many critics, including me, chided President Obama’s issuance of a unilateral executive order requiring transgender access to every public school bathroom in America. Though not opposed to transgender rights, we thought it best for each school or state to work out its own policy in this delicate area as a matter of principle. Is Trump’s order any different? This is true apart from the constitutional issues implicit in Trump’s statement which require separate consideration once we know the details.

Second, such an order could well backfire. To begin, the Feds often intervene with a jackhammer, unintentionally breaking things in the process. Recall how the expansive application of Title IX in sexual misconduct cases led to the evisceration of due process in campus hearings for many years. Only recently has the pendulum balancing justice for the accuser and the accused begun swinging back toward an appropriate position. As the president of the University of Chicago, perhaps the nation’s leading institution in supporting campus free speech, wrote in response to Trump’s declaration, such intervention “makes the government, with all its power and authority, a party to defining the very nature of discussion on campus.” Such power undermines institutional responsibility and could readily include chilling the voices of those whose politics differ from whatever group or party controls the government at the time.

Such an order could also undermine faculty free speech activists who have worked hard over the years to restore free speech and liberty on campus. If I have learned anything from the campus politics of free speech, it is that the defense of free speech must be non-partisan in both substance and appearance. Presidents are partisan, and Trump is certainly no exception. In Wisconsin, state campuses construed the state legislature’s 2017 campus free speech bill as partisan, a perspective only reinforced by other legislative measures that intruded upon university autonomy and challenged the academic freedom of some instructors. Trump’s executive order is hardly guaranteed to be helpful to local free speech activists.

There is a way that the administration could help free speech on campus while avoiding these potential pitfalls. In 2003 the assistant secretary of the Office of Civil Rights in the federal Department of Education wrote a letter to colleges and universities affirming the institutions’ obligation to apply existing harassment law in a manner that does not violate the First Amendment: “I want to assure you in the clearest possible terms that OCR’s regulations are not intended to restrict the exercise of any expressive activities protected under the U.S. Constitution.”

Rather than calling for a sweeping policy dictating how higher education institutions should deal with harassment and speech, the 2003 letter simply reaffirmed what was already obvious: in applying harassment policy, be sure not to confuse protected speech with harassment, leaving the implications to each institution and its litigation concerns. A similar letter by Secretary Betsy DeVos might help campus free speech activists, rather than complicate their cause.


*Donald Downs is is the Alexander Meiklejohn Professor of Political Science Emeritus, and the Affiliate Professor of Law, and Journalism Emeritus at UW-Madison. He is currently writing a book on campus free speech for the Cato Institute.